# BOONE v. WELLS FARGO BANK, NATIONAL ASSOCIATION

> District Court, M.D. North Carolina · August 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10254354

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254354

## How later opinions describe it (automated extraction)

- applying the same standard to race and sex discrimination
- discussing legal standard for failure to promote under Title VII
- applying McDonnell Douglas to ADEA cases
- holding that the plaintiff must plead facts supporting a reasonable inference she was discriminated against because of her race or sex

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ADRIENNE BOONE, )
)
Plaintiff, )
)
v. ) 1:22-cv-51
)
WELLS FARGO BANK, NATIONAL )
ASSOCIATION, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Plaintiff Adrienne Boone’s
Motion to Amend Complaint. (Doc. 11.) Defendant Wells Fargo
Bank, National Association, (“Wells Fargo”) filed a response in
opposition. (Doc. 14.) Plaintiff replied. (Pl.’s Reply in Supp.
of Pl.’s Mot. to Am. (“Pl.’s Reply”) (Doc. 15).) For the reasons
provided herein, Plaintiff’s motion will be denied as futile.
I. BACKGROUND
The facts, as originally alleged by Plaintiff, are
presented fully in this court’s prior Memorandum Opinion and
order addressing Defendant’s motion to dismiss. (Doc. 9.)1 For
context, they are summarized in brief as follows:
Plaintiff “is a [B]lack female over the age of [forty].”
(Mem. Op. and Ord. (Doc. 9) at 2–3 (quoting Compl. (Doc. 1)
¶ 8.) In 2017, Plaintiff was an IFS Associate at Wells Fargo.
(Id. at 2.) Plaintiff performed the duties of an Investment
Management Specialist (“IMS”) and was assigned a previous IMS’s
clients, but she was not salaried and did not receive the IMS
pay, bonus or benefits. (Id.) In February 2020, Plaintiff

applied and interviewed for an IMS position, and she was later
informed that the position was cancelled and left unfilled. (Id.
at 2–3.)
In September 2020, Plaintiff emailed Wells Fargo CEO
Charlie Scharf complaining of race, sex, and age discrimination.
(Id. at 3.) Subsequently, Plaintiff’s accounts were reduced such
that Plaintiff would no longer be eligible for promotion to the
IMS position, should one become available. (Id.)
In December 2020, Plaintiff filed a charge of employment
discrimination with the EEOC, and Plaintiff was issued a right
to sue letter in October 2021. (Id.)

1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
On January 24, 2022, Plaintiff filed her complaint in this
court alleging race, sex, and age discrimination, as well as
retaliation. (Compl. (Doc. 1) at 5–8.) Specifically, Plaintiff
alleged: race discrimination for Plaintiff’s non-promotion to
the IMS position in violation of Title VII of the Civil Rights
Act (“Title VII”) and 42 U.S.C. § 1981; sex discrimination for
Plaintiff’s non-promotion to the IMS position in violation of
Title VII; age discrimination for Plaintiff’s non-promotion to
the IMS position in violation of the Age Discrimination in

Employment Act (“ADEA”); and retaliation in violation of
Title VII, 42 U.S.C. § 1981, and the ADEA. (Id.)
Defendant moved to dismiss all of Plaintiff’s claims.
(Doc. 5.) This court granted Defendant’s motion to dismiss
without prejudice as to Plaintiff’s claims of race, sex, and age
discrimination. This court denied Defendant’s motion as to
Plaintiff’s claims for retaliation. (Mem. Op. and Ord. (Doc. 9)
at 19–20.)
Plaintiff now moves to amend her complaint. (Doc. 11.) In
her motion to amend, Plaintiff alleges the following additional,
relevant facts:
Plaintiff’s “qualifications included 22 years of experience

in the financial industry, Certification from CFA Institute
Investment Foundations Program, Life and Health licensed in
North Carolina since November 10, 2000, and a Certified Trust
Financial Advisor since September 2015.” (Am. Compl. and Jury
Request (Doc. 11-1) ¶ 13.)
A regional manager informed Plaintiff “that she was
qualified for the Investment Management Specialist position.”
(Id. ¶ 14.)
Plaintiff “was informed the [IMS] position was cancelled on
July 1, 2020.” (Id. ¶ 19.)
“At the time, [Plaintiff] was 62 years old.” (Id. ¶ 21.)

“[T]here were 6 Investment Management Specialists: two [W]hite
females in their 30s, two [W]hite males in their 30s, a [W]hite
male who was roughly 40, and a [W]hite female who was 47.” (Id.
¶ 22.) “There [were] no Black Investment Management
Specialists.” (Id. ¶ 24.)
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a)(1) allows a party to
amend its pleading once as a matter of course under certain
circumstances not applicable here. Otherwise, “a party may amend
its pleading only with the opposing party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should
freely give leave when justice so requires[,]” id., denying

leave “only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.” Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citation and internal
quotation marks omitted).
With respect to futility, leave to amend “should only be
denied . . . when the proposed amendment is clearly insufficient
or frivolous on its face.” Johnson v. Oroweat Foods Co., 785
F.2d 503, 510 (4th Cir. 1986) (citations omitted). “An amendment
would be futile if the amended claim would fail to survive a
motion to dismiss for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6).” Syngenta Crop Prot.,
Inc. v. E.P.A., 222 F.R.D. 271, 278 (M.D.N.C. 2004) (citation
omitted). A Rule 12(b)(6) motion tests the legal sufficiency of
a complaint. See Neitzke v. Williams, 490 U.S. 319, 326–27
(1989).
“To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and
demonstrates “more than a sheer possibility that a defendant has
acted unlawfully.” Id. The factual allegations must be
sufficient to “raise a right to relief above the speculative
level” so as to “nudge[] the[] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 555, 570; see
also Iqbal, 556 U.S. at 680.
Employment discrimination complaints must meet the
Twombly/Iqbal plausibility standard; however, the plaintiff is
not required to make out a prima facie case or satisfy any
heightened pleading requirements at the motion to dismiss stage.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002);
McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85
(4th Cir. 2015). The plaintiff is, however, required to plead
facts that permit the court to reasonably infer each element of
the prima facie case. McCleary-Evans, 780 F.3d at 585; see also
Iqbal, 556 U.S. at 682-83 (holding that the plaintiff must plead
facts supporting a reasonable inference she was discriminated
against because of her race or sex).
III. ANALYSIS
Plaintiff moves to amend her complaint with additional
factual allegations related to her claims for race, sex, and age
discrimination. This court finds those additional allegations

are futile to enable her race, sex, and age discrimination
claims to survive a Rule 12(b)(6) motion to dismiss, so this
court will deny her motion to amend.
Plaintiff alleges that she was not promoted to the IMS
position because of unlawful race, sex, and age discrimination.
(Compl. (Doc. 1) at 5–8.) “Section 1981 ‘guards generally
against race-based discrimination in the workplace.’” Marshall
v. C & S Rail Servs., LLC, No. 1:19CV986, 2021 WL 1341801, at *6
(M.D.N.C. Apr. 9, 2021) (quoting Lemon v. Myers Bigel, P.A., 985
F.3d 392, 399 (4th Cir.)); see also 42 U.S.C. § 1981. Title VII

makes it unlawful for an employer to “discriminate against any
individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1).
This includes failure to promote an employee on the basis of
race or sex. See, e.g., Carter v. Ball, 33 F.3d 450, 458 (4th
Cir. 1994) (discussing legal standard for failure to promote
under Title VII). “The ADEA prohibits employers from refusing to
hire, discharging, or otherwise discriminating against any
person who is at least 40 years of age because of the person’s
age.” Tickles v. Johnson, 805 F. App’x 204, 206–07 (4th Cir.
2020) (internal citations omitted); see also 29 U.S.C. §§

623(a), 631(a).
The elements required to establish a prima facie case of
race discrimination are the same under Title VII and section
1981; therefore, the court considers these claims together. See
Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 n.7 (4th Cir.
2002); Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d 1281,
1285–86 (4th Cir. 1985); McDougal-Wilson v. Goodyear Tire and
Rubber Co., 427 F. Supp. 2d 595, 604 (E.D.N.C. 2006). A
plaintiff can prove race, sex, or age discrimination either
through direct evidence of discrimination or circumstantially

through the McDonnel Douglas burden-shifting framework. See
McDonnel Douglas, 411 U.S. 792, 802 (1973); see also Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.
1996) (same Title VII standard for sex discrimination); Henson
v. Liggett Grp., 61 F.3d 270, 274–75 (4th Cir. 1995) (applying
McDonnell Douglas to ADEA cases). “[I]n order to establish a
prima facie case of racial discrimination . . . under either
Title VII or section 1981, [a plaintiff] need[s] to show:
(1) membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action . . .; and (4) that
similarly-situated employees outside the protected class
received more favorable treatment.” White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004).
At the motion to dismiss stage, a plaintiff is not required
to plead a prima facie case of discrimination. Swierkiewicz, 534
U.S. at 511; see also Iqbal, 556 U.S. at 682–83 (plaintiff must
plead facts supporting reasonable inference of discriminatory
intent). But a complaint alleging discrimination is not
sufficient
if, under the ordinary rules for assessing the
sufficiency of a complaint, it fails to state a
plausible claim for relief under Title VII. See
Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th
Cir. 2010) (“[W]hile a plaintiff is not required to
plead facts that constitute a prima facie case in
order to survive a motion to dismiss, factual
allegations must be enough to raise a right to relief
above the speculative level.”).

McCleary-Evans, 780 F.3d at 585 (cleaned up).
Plaintiff’s proposed amendment does not allege any facts to
plead direct or circumstantial discrimination based on race,
sex, or age. Assuming, arguendo, that Plaintiff has plausibly
alleged an adverse employment action — that is, failure to
promote — Plaintiff has not provided any facts to plausibly
allege that she was subject to unlawful discrimination.
Plaintiff’s allegations fail to “raise a right to relief above
the speculative level.” See McCleary-Evans, 780 F.3d at 585
(quoting Twombly, 550 U.S. at 555.)
Plaintiff’s allegations as to any discriminatory treatment
are merely conclusory statements. At most, Plaintiff alleges
that she is a sixty-two-year-old Black female and that the
individuals in the IMS position were younger and White. While
Plaintiff provided factual allegations concerning her
experiences and certifications, those facts standing alone
provide no basis for which to infer a discriminatory intent
sufficient to plausibly allege an adverse employment action due
to discrimination. See Tickles, 805 F. App’x at 207 (addressing
age discrimination); McCleary-Evans, 780 F.3d at 588 (applying
the same standard to race and sex discrimination).

In Tickles, the plaintiff, a 48-year-old man, alleged age
discrimination when he was “passed over” for a promotion in
favor of “two younger, less qualified individuals.” 805 F. App’x
at 205. A panel of the Fourth Circuit noted that the plaintiff’s
complaint lacked “specific allegations that would give rise to a
reasonable inference of age-based discrimination, such as the
nature of the requirements for promotion, [the plaintiff’s] own
qualifications, the qualifications and rule violations of his
proposed comparators, or even the proposed comparators’
proximity in age to his own.” Id. at 208. The Fourth Circuit
affirmed the lower court’s decision granting the defendant’s
motion to dismiss. Id.

Similarly, in Nadendla v. WakeMed, the plaintiff, a
physician of Indian origin, lost clinical and staffing
privileges at WakeMed’s hospital. 24 F.4th 299, 302 (4th Cir.
2022). The plaintiff, among other claims, sued WakeMed for race
discrimination in violation of § 1981. Id. at 303. The Fourth
Circuit affirmed the lower court’s dismissal of the plaintiff’s
§ 1981 claim, explaining that the plaintiff failed to allege
“factual details regarding race” that allowed the court “to draw
a reasonable inference as to those legal requirements” that
would enable the plaintiff to “survive a motion to dismiss.” Id.
at 305. The Fourth Circuit explained:

[The plaintiff] provides no details about any of these
conclusory allegations. For example, she does not give
any facts to suggest that [the defendant’s] treatment
of other physicians of Indian descent was unjustified.
She does not provide any details about how the peer
review process for physicians of Indian descent was
different from the process for white physicians
either. She does not even describe how she was treated
differently than the similarly situated white
physicians.

Id. at 305–06. In addition to allegations of discrimination, the
Fourth Circuit explained that the plaintiff’s “allegations about
causation fall short.” Id. at 306 (finding a pleading that
“[b]ut for Plaintiff’s race, [WakeMed]’s wrongful conduct [that]
Plaintiff alleged herein would not have occurred” does not
allege specific facts that state a plausible claim for relief)
(citing the joint appendix). The court found that the
plaintiff’s “allegations seem to be precisely the type that
Iqbal and Twombly tell us are insufficient. Because her
allegations do not provide sufficient detail to create a
plausible inference that WakeMed’s actions were because of
Nadendla’s race, she has failed to plausibly state a claim under
§ 1t981.” Id.
In comparison, the Fourth Circuit found that the plaintiffs
in Woods v. City of Greensboro, in bringing race discrimination
claims, had “alleged sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” 855 F.3d 639, 653 (4th Cir. 2017). The facts plaintiffs

alleged included: “(1) the results of a disparity study
demonstrating a pattern of the City almost exclusively lending
to nonminority-owned businesses; (2) facts which suggest that
the [business-owners’] residence had sufficient equity to fully
secure a third-position lien; and (3) examples of how the City
has treated nonminority businesses differently, including taking
a third-position lien in approving a loan to a nonminority
corporation.” Id. at 649.
Here, unlike Woods and like Nadendla, Plaintiff offers only
conclusory statements that speculate about why Plaintiff was not
selected for the IMS position, and Plaintiff fails to allege any
facts to plausibly suggest that the reason she was not promoted

to IMS Associate was because of her race, sex, or age. Plaintiff
does not allege any facts related to the qualifications required
for the IMS position or the qualifications listed in the job
posting, instead asking this court to guess that her
qualifications were those Defendant sought in the IMS position
it opened in 2020. While this court does not require that
Plaintiff “allege the qualifications of any of the other
applicants to the position,” (Pl.’s Reply (Doc. 15) at 6),
Plaintiff does not allege any facts describing “how she was
treated differently than any similarly situated [W]hite”
applicants, see Nadendla, 24 F.4th at 305–06. Similar to the

analysis in Nadendla, “factual details regarding race are
conspicuously absent.” See id. at 305.
Plaintiff alleges that the six Investment Management
Specialists were all White, but that allegation does not provide
factual support of discrimination specific to Plaintiff.
Furthermore, even if the allegation that the Management
Specialists were all White provides a circumstantial inference,
which standing alone it does not, Plaintiff fails to allege
facts to show how her qualifications compare to those six
individuals, nor does Plaintiff allege any facts which might
permit a reasonable inference as to Plaintiff’s circumstances,
or the alleged discrimination.

Accordingly, Plaintiff’s amended complaint still provides
no such factual allegations that “nudge [her] claims across the
line from conceivable to plausible.” See id. (citing Twombly,
550 U.S. at 570). Notwithstanding this court’s denial of
Defendant’s motion to dismiss Plaintiff’s retaliation claims,
her amended complaint is futile, as it “would fail to survive a
motion to dismiss for failure to state a claim [for race, sex,
or age discrimination] pursuant to Federal Rule of Civil
Procedure 12(b) (6).” See Syngenta Crop Prot., Inc., 222 F.R.D.
at 278. Plaintiff’s motion to amend, (Doc. 11), will be denied.
Iv. CONCLUSION
Plaintiff’s proposed amended complaint lacks sufficient
factual allegations to state a claim for race, sex, or age
discrimination that is plausible on its face. Accordingly,
Plaintiff’s motion to amend will be denied as futile.
For the foregoing reasons,
IT IS THEREFORE ORDERED that Plaintiff Adrienne Boone’s
Motion to Amend Complaint, (Doc. 11), is DENIED.
This the 25th day of August, 2023.

Le Minin _L. Webi Ve
United States District Type

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254354. Public record. Not legal advice.